Introduction 17
undemocratic cast of German liberalism on the eve of the Weimar
Republic. Clearly, Habermas found it necessary to work through
Weber to work through the problems of a statist view of democra-
c y.^62 Weber’s thought belonged to the tradition of German statism
because of his orientation to the executive branch and his tendency to
dissociate the rule of law from democratic sources of legitimation.
Habermas’s concern about Weber has remained acute through-
out his career.^63 At a conference held in Heidelberg in 1964 to com-
memorate the centenary of Max Weber’s birth, Habermas dissented
from the portrayal of Weber as a liberal, emphasizing instead the
dangerous decisionist element in his thought: “If we are to judge
Weber here and now, we cannot overlook the fact that Carl Schmitt
was a ‘legitimate pupil’ of Weber’s.”^64 The main link between
Schmitt and Weber is that Schmitt “... exploited Weber’s reduction
of legal legitimacy to ‘belief’ in the law’s validity.”^65 Schmitt’s influ-
ence over the Federal Republic’s political thought and culture was
one of the main factors that led Habermas to the law.
For any thinker concerned with the distorting legacies of German
statism for democratic practice, Schmitt’s thought was unavoid-
able.^66 German statism declined in the postwar years, and new con-
ceptions of the relationship of legality and legitimacy emerged that
were not entangled in Weberian or Schmittian aporia. Habermas’s
recasting of German political thought contributed to the decline of
German statism in philosophy and practice.
ANTINOMY III: LIBERAL CONSTITUTIONALISM AND DEMOCRACY
The existence of an irreconcilable tension between constitutional-
ism and democracy has been deemed “one of the core myths” of
modern political thought.^67 It is easy to see why this myth could
(^62) Compare Ulrich Preuss, “Communicative Power and the Concept of Law,”
in “Habermas on Law and Democracy: Critical Exchanges,” Part I, Cardozo
Law Review 17:4–5 (March 1996 ), 1179–92.
(^63) For discussion of the Weber-Habermas connection, see Chapters 3 , 4 , and 5.
(^64) Otto Stammer, ed., Max Weber and Sociology [1965] (Oxford, England:
Blackwell, 1971 ), 66.
(^65) John McCormick, “Introduction,” Legality and Legitimacy, xl.
(^66) Müller, A Dangerous Mind, 5.
(^67) Stephen Holmes, “Precommitment and the Paradox of Democracy,” in John
Elster and Rune Slugstad, eds., Constitutionalism and Democracy (Cambridge,
England: Cambridge University Press, 1988 ), 197.